Displaying a Noose Should Not Be Made a Crime

Currently, it is not a crime in New York State to display a hangmans noose, but proposed legislation, already passed in the Senate, seeks to make it one; and similar legislation is in the works for other states. The proposed New York law states that a person is guilty of aggravated harassment in the first degree if he or she "Etches, paints, draws upon or otherwise places or displays a noose...on any building... without express permission of the owner...of such building." Such a display will not be considered a crime unless it is done with the "intent to harass, annoy, threaten or alarm another person because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation..." Theoretically a person could still legally protest against Al Sharpton by hanging him in effigy, but I wouldn't count on not getting arrested for doing so.If the above proposal is made law, it most likely will withstand any constitutional challenge. In 2003, the United States Supreme Court ruled in Virginia v. Black that "a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate." It's not difficult to see that placing a noose on a Black professor's door is not much different than burning a cross on her lawn.

New York's proposed law is not actually a new law. Rather it is an amendment to Penal Law 240.31 that already bans the display of swastikas and cross burnings if done with the intent to intimidate.

This law, along with many others, is part of the New York State Hate Crimes Act of 2000, an act which primarily adds prison time to crimes in which the victim is targeted because of race, color, etc. For example, Caleb Lussier pled guilty on October 29, 2007 to torching a church in Warren County. He burned it because he did not believe the parishioners were following the teachings of the Bible. Since his action was a hate crime, he will serve a longer term than the typical arsonist.

Even though the proposed amendment to the Penal Law appears constitutional, I have many concerns with New York State's ever expanding catalog of hate crimes, and I believe the proposed legislation is unwise. First, the potential for expanding the law to prohibit actual speech is very real. This has already happened in Europe. It is a crime to deny the Holocaust in Austria, to publicly use racial slurs in the UK and to insult a person publicly because of "race, colour, national or ethnic origin, or sexual inclination" in Denmark. Similar laws have been proposed in the United States.

Another problem with New York State's hate crimes is the corresponding punishments. A person found guilty of hanging a noose in a co-worker's locker with the intent to harass, for example, will be sentenced to two to three years in prison. Prison is most appropriate for crimes like arson and murder, whether or not bias was the motivation, but not for displaying a noose with the intent to intimidate.

There are already too many people incarcerated in the United States, creating a huge financial burden. According to the International Centre for Prison Studies located at Kings College in London (www.prisonstudies.org), the United States leads the world in number of people incarcerated per 100,000. While New York State's prison rate is lower than some states, it's annual cost per prisoner is third highest at $42,202.

New York's hate crime legislation has put more people in prison for longer periods of time at great expense to taxpayers. But what are we getting in return? Does it make us safer? Do extra years added to a murder or arson sentence do anything to eliminate hate and prejudice. If we have failed to teach tolerance in the classroom, do we think it can be learned in prison?

Violations of Penal Law 240.31 cry out for alternatives to incarceration, particularly for first time offenders. Fines, with some of the money going to crime victims, probation, and educational courses in which the perpetrator has to confront, through film, books and other means, the horrific legacy of hate would likely do more good than prison.

The NY State Hate Crimes Act has also created several anomalies. For example, if you burn down your ex-girlfriend's house, even though motivated by intense hatred, you cannot be charged with a hate crime and will do less time than Caleb Lussier. All rapes are potentially hate crimes since rapists generally only target one gender, but few rapists have been charged with hate crimes. A pedophile cannot be charged with a hate crime even though he targets children because the Hate Crimes Act defines age as sixty years or older. Groups that hate Catholics have disrupted worship services on several occasions but no state legislator has proposed that the disruption of worship services be made a hate crime.

I feel deeply for people who have had a cross burned on their property or a swastika painted on their synagogue. Unfortunately, we have no proof that hate crimes legislation has or will do anything to stop biased thought or behavior. Indeed, because our approach to hate crimes is exclusively punitive, it may well create a rebound effect and at some time in the future the noose we are banning today will come back and hang us all.